Can They Really Ask That?
Both the job application form and the job interview process ask lots of questions. These may be as formal as asking you to complete your education information on an application, or as informal as a hiring manager asking how long the commute would be to your new job.
Questions provide employers with many of the answers they need to make good hiring decisions. At the same time, employers don’t want to expose themselves to a lawsuit by asking the wrong kinds of questions. As a job applicant, you may have been asked questions that just don’t feel right.
This article is an exploration of job interview questions, how to recognize those that are appropriate from inappropriate, and how to respond to the inappropriate ones, if and when they are asked.
We want to draw your attention to the fact that the information provided in the article may be applicable to many countries, but it is written to reflect U.S. laws.
What Does “Legally Protected Under the Law” Mean?
Various federal and state laws of the United States (principally the federal Civil Rights Act of 1964) have established certain legally protected categories including but not limited to age, race, national origin, and sex.
While it is illegal for an employer to base a hiring decision on these and other similar categories, most of these laws do not specifically make it illegal to ask a question about them. We’re here to help you make sense of it all.
In general, employers must exercise due care when asking job candidates certain questions about the following categories:
- Marital/Family Status
- Sex/Gender/Gender Identity
- Birthplace/National Origin
- Current/Previous Salary
Are you over 40? If so, you are protected by the Age Discrimination in Employment Act of 1967. This law prohibits employers from making hiring decisions based on the job candidate’s age.
Employers may not directly ask your age or when you were born. They may not even ask when you graduated from high school or college, as they would easily be able to calculate your age based on such dates.
On the other hand, you will have noticed that many job applications ask if you are 18 or over. Child labor laws do not permit anyone under 18 to work at certain jobs. This age-related question is appropriate. For example, in most states, bartenders must be at least 18 to tend bar, and therefore it is proper to ask the candidate’s age in this instance.
Interviewers may not ask if you are married, who you live with, how many children you have, who cares for them when you are at work, etc. Your marital/family situation should have no effect on your ability to do the job, and the employer’s decision to hire you should not be based on these factors.
On the other hand, if the job calls for periodic travel or heavy overtime, the employer will want to know if you are willing to take on these duties. Asking if you agree to work overtime is an appropriate question.
It is not necessary to ask direct questions about any family or family obligations you may have. Suppose you choose to mention that you have family obligations and bring up your spouse or children. In this case, the door is open to further discussion about your situation, and the interviewer has done nothing improper.
Under federal law – The Civil Rights Act of 1964 (which is overseen by the Equal Employment Opportunity Commission – the EEOC), questions about race and/or color are illegal. There is no subtlety here.
Employers must not treat any job candidate unfairly based on skin color, parents, minority group affiliations, race/color of a spouse, etc. No one may be turned down for a job based on any of the factors described here.
There are no “on the other hands” for this category. Fundamentally, all race/color questions are illegal and should not play any part in hiring decisions.
The Civil Rights Act of 1964 and the Pregnancy Discrimination Act of 1978 expressly prohibit employers from making hiring decisions based on sex, pregnancy, childbirth, and related factors.
Employers may not ask if you have children, or plan on starting a family, or if you are pregnant.
They are not permitted to inquire about your children’s ages, or what kind of child-care arrangements you will have for them if you are hired. They may also not ask about your spouse’s or significant other’s concerns about your working hours or company travel.
With regard to gender identification, they should not ask you to indicate “Male/Female” or “Mr./Ms./Miss” on any application or pre-employment paperwork. No one may be asked things like “Are you straight or gay?”
Just recently, the Supreme Court of the United States ruled that the 1964 Civil Rights Act has been extended to include LGBTQ employees for purposes of discrimination in employment. LGBTQ job applicants are afforded the same protections.
As you can see, there are plenty of forbidden subjects to ask regarding sex and gender identity. There are, however, certain questions within this category that an interviewer may legitimately ask. These include questions about overtime, company travel, and work schedules.
Here are some questions that are proper to ask:
- Can you work overtime, nights, or weekends?
- Are you willing to relocate?
- Travel is expected to be at approximately 10%, is this OK?
- Are you able to start at 8 a.m.?
These are legitimate questions for any business, and it is up to the candidate to respond truthfully. If the candidate has concerns about any of them, it is up to them to inform the employer and explain why. The answers may have to touch matters of sex, family, etc., but these questions are proper to ask.
It is illegal for employers to discriminate on the basis of religion. Questions about religion and religious beliefs may not be asked during a job interview.
Some improper questions include:
- Do you attend church on a regular basis?
- What is your religion?
- Will you need time-off for religious services, holidays?
- I see you graduated from Boston College, which is a Jesuit institution. Are you a Catholic yourself?
Do employers need this information? – They do not! Questions such as these should play no role in deciding about a candidate or their qualifications.
However, although not directly asked about religion, there is one legitimate question that still fits within this general category, “Are you available to work on weekends?” Although it may touch on someone’s religious observances, it is proper to ask if it is an integral part of the job.
Where you or your ancestors come from should be of no consequence to an employer looking to fill a position. Once again, the U.S. Civil Rights Act of 1964 establishes that employers may not discriminate against prospective employees because they come from different parts of the world, have accents, or represent a particular ethnicity. Nor may they treat anyone married to a person of a certain national origin unfairly.
Inappropriate questions in this category include, but are not limited to:
- Are you an American citizen?
- I hear an accent. Where are you from?
- Where were you born?
- What language is spoken in your home?
- Your last name sounds foreign, are you married to someone from another country? (Asked of a woman)
- What is your native tongue?
- You say you read, write, and speak Russian. How is it you are familiar with this language?
There are, of course, questions around national origin that are legitimate. Most of these center around a federal law that deals with a person’s right to work in the United States.
Questions such as the following are proper and appropriate:
- Are you eligible to work in the United States?
- If you are not a U.S. citizen, do you have the legal right to remain in the states on a permanent basis?
- If we hire you, will you be able to provide proof of employment eligibility?
Under the law, employers generally cannot ask disability-related questions or require medical examinations until after an applicant has been given a conditional job offer.
In the past, this information was frequently used to exclude applicants with disabilities before their ability to perform a job was evaluated.
Here is a sampling of the questions that should not be asked of a job candidate:
- What is your medical history?
- Have you ever had a serious illness?
- Do you take any prescription drugs, and for what purpose?
- Do you have any disabilities?
- I see that you wear hearing aids. Tell me about your hearing loss.
- Have you ever been on disability or workers' compensation?
- How many sick days did you take on your last job?
There are a few appropriate questions regarding disabilities that employers may ask, primarily because the answers may impact the person’s ability to do the job:
- Are you able to perform the job's essential duties, for example, bending, lifting, and carrying up to 25 pounds, or standing on your feet for extended periods of time?
- Have you used illicit drugs?
If candidates voluntarily disclose a disability or it is obvious that they have one (e. g., the person arrives in a wheelchair), the interviewer may ask if they would need any reasonable accommodations to perform their work. Once a person is hired, their voluntarily disclosed disabilities must be kept confidential by the employer.
If a job offer is made, the employer may ask questions about the person’s disability, but only to the extent that they can function on the job and do it without the possibility of causing harm to themselves and others.
Some laws prevent prospective employers from asking job candidates about their current or previous salary in many states. Salary history can be used to eliminate candidates from consideration if the employer feels their compensation expectations are too high for the job.
Also, some employers have used this information to keep women from attaining the same salary as men for the same job. Suppose a woman previously earned less than the employer is currently paying a man for the same job. In that case, they might only offer the female candidate what they previously earned and not the higher salary.
How Do You Respond to an Inappropriate Question?
We also want you to understand that despite the impropriety or illegality of certain questions, some employers will still ask them, and you should know how to respond. Being well informed will help you – as a job candidate – to make the right decision about an employment opportunity.
Here’s your dilemma:
- Do you want the opportunity badly enough that you will answer questions that are clearly inappropriate or illegal?
- Or will you take an ethical stand regarding the appropriateness of the questions?
Alternatively, you can take a third path and turn a negative into a positive (let's call it a "turn-around approach"), which may lead you to the job without compromising your integrity…
Let’s explore each one.
1. Answer the Question(s) – This is the least satisfying of the three because you have to answer questions that the interviewer has no right to ask and no right to know. You understand that the answers you give might directly result in not getting the job, but you want it enough to go along with the program.
2. Take an Ethical Stand – Take a stand and tell the interviewer the question is inappropriate and might be against the law. Give the interviewer an opportunity to rephrase the question to one that is proper, or if this does not work, refuse to answer and be ready to walk out of the interview.
It is very likely that you will not be offered the job but consider whether this is the type of company you would want to work for anyway.
3. The Turn-Around Approach – Turn what might be a negative question into a positive or perhaps steer the interviewer in a different direction.
Here are a few examples of what we mean:
A. Let’s say the question is about age.
You might want to emphasize how your expertise in the job's subject area would be an asset to the company that you would offer both guidance and mentorship to other staff members.
You could bring in an especially relevant and hopefully a recent STAR story, describing how you handled a situation that a less experienced person may not have brought to a satisfactory conclusion.
B. What if you are asked if you have young children and who will care for them when you are at work?
Your direct response should state that you are available to work the normal hours required by the job and then redirect the conversation by talking about some of the specific duties of the job itself and your ability to handle each one.
C. How about a question like, “I love your accent, where is it from?”
Your response could be that you believe your international experience might provide the company with an extra competitive advantage, and then go on to talk about how you would address the requirements outlined in the job description.
These types of responses will work for just about any of the question categories we have covered in this article. Think about how you would respond to what might be an inappropriate question using this approach.
How you respond is up to you. But always keep in mind that you are not the only job candidate in this situation. While the interviewers are questioning your fit for the job, you are also interviewing them!
- Is the job right for me?
- Do I like the person across the table from me?
- Will I fit into their culture?
You have every right to analyze the job and who you report to. If that person insists on asking inappropriate questions, do you wish to work for them?
Be a decision-maker, and make the right choice!
A Word About Those EEOC Questionnaires on Job Applications
All of us who apply for jobs in the U.S. have responded to the mostly voluntary EEOC questions that are part of job applications. They are there for a reason.
Both the federal and state governments want to obtain employment and hiring data on the protected status groups discussed in this article. Employers are obligated to gather this information from job applicants and to send it to the EEOC.
None of it may go to the company’s recruiters and hiring managers to be used in making hiring decisions. It is always kept separate from the hiring process, and it is OK to complete the forms.
Don’t let an inappropriate question “come out of left field” and leave you without a response. Think about the areas of protected status that you might fit into, and be ready to respond if you get an inappropriate or illegal question.
Be smart! Try to turn these questions to your advantage. Finding the proper ways to answer them can be another opportunity for you to show off your Key Selling Points!
About the Author: Stuart Weiner has over 25 years of experience as a compliance officer and auditor, primarily in the healthcare field, and is currently the Principal of Integrated Compliance, a compliance consulting firm. He also serves as the registrar for the training committee at the Professional Service Group of Central New Jersey (PSGCNJ) – a U.S.-based organization that helps job seekers in their career transition.